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ELRCDismissedCause No 1809 of 2016· [2023] KEELRC 2083 (KLR)

Anunda v Mjengo Limited (Cause 1809 of 2016) [2023] KEELRC 2083 (KLR)

Employment and Labour Relations Court
27 July 2023
OKOcharo Kebira
2,462 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan employment court refused to revive a suit dismissed in 2018, ruling that a nearly three-year unexplained delay defeated the claimant's reinstatement request.

What this practically means

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Executive summary

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The Claimant applied by Notice of Motion dated May 17, 2021 for review and setting aside of an order of June 14, 2018 dismissing his suit (filed September 8, 2017) for want of prosecution, and for reinstatement of the suit, with costs in the cause. The application was supported by an affidavit of the Claimant's advocate, Mildred K. Gakoi, who explained that she was indisposed on the hearing date and only learned of the dismissal on November 2, 2018 when a clerk visited the registry; her office file went missing and was traced only around November 2020/April 2021. The Respondent opposed, contending the application came almost three years after dismissal, that the delay was inordinate and inexcusable, that the missing-file excuse was invalid, and that it would suffer prejudice in recovering documents and witnesses. The court, Ocharo Kebira J, distilled a single issue: whether the suit could be reinstated. Applying Shah v Mbogo, the court held that reinstatement is discretionary and not granted as a matter of course. Counsel's indisposition did not excuse her failure to instruct other counsel or seek an adjournment; the mis-diarisation claim, raised first in submissions, was an afterthought; and the missing-file explanation was unconvincing since the file could be reconstructed from the court record. The court held that the principle that counsel's mistake should not be visited on the client is not blanket and did not assist the Claimant. Equating delay with indolence, the court dismissed the application and made no order as to costs.

Key legal issues

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Whether the court should exercise its discretion to set aside the dismissal of the suit and reinstate it for hearing

Holding

The application was dismissed because the Claimant failed to give sufficient reason for Counsel's non-attendance and for the almost three-year delay in moving the court

Reasoning

Reinstatement is discretionary and granted only where justice requires. The hearing date was fixed in the presence of Counsel, who neither attended, briefed another Counsel, nor sought an adjournment. The assertion of mis-diarisation was raised only in submissions and deemed an afterthought. The explanation that the office file went missing was unconvincing since Counsel could reconstruct it from the court file. Equity does not assist the indolent.

p. 5

Legal principles established

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  • An order for reinstatement is discretionary and is not granted as a matter of course; it is granted only where the justice of the matter requires it on material presented by the Applicant
  • The principle that Counsel's mistake should not be visited on the client is not a blanket rule and does not apply in all circumstances
  • Equity does not aid the indolent; inordinate and unexplained delay defeats a claimant's application for reinstatement

Court orders

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  1. 1.The Application filed on May 17, 2021 is dismissed
  2. 2.No order is made as to costs

Authorities

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Legislation

  • Civil Procedure ActSection 3A
  • Constitution of KenyaArticle 159(2)(d)
  • Constitution of KenyaArticle 48
  • Civil Procedure RulesOrder 21 Rule 1
  • Civil Procedure ActSection 1B

Cases cited (6)

  • Burhani Decorators & Contractors vs Morning Foods Ltd & another
    (2012) Nairobi CA
  • Safaricom Limited vs Josenga Company Limited & 4 others
    (2021) eKLR
  • Fran Investments Limited vs G4S Security Services Limited
    (2015) eKLR
  • Shah vs Mbogo & Another
    [1967] EA 116
  • Elosy Murugi Nyaga vs Tharaka Nithi County Government & another
    (2020) eKLR
  • Ibrahim Mungara Mwangi v Francis Ndegwa Mwangi
    [2014] eKLR
Jurisdiction invoked
Section 3A of the Civil Procedure Act (inherent power to make orders necessary for the ends of justice); Article 159(2)(d) of the Constitution

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Anunda v Mjengo Limited (Cause 1809 of 2016) [2023] KEELRC 2083 (KLR)", Case Analysis (2023). Cause No 1809 of 2016. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/2083/eng@2023-07-27

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.